Standard Brands, Inc.

In the Matter of STANDARD BRANDS , INCORPORATED , BALTIMORE TRUCKING OPERATION OF THE FLEISCHMANN MANUFACTURING DIVI- SION, EMPLOYER and JOINT COUNCIL No . 62 OF INTERNATIONAL BROTHERHOOD OF TEAMSTERS , A. F. OF L., PETITIONER Case No. 5-R-2439.-Decided January 16, 1947 Mr. F. B. Haught, of New York City, for the Employer. Messrs. Jacob T. Edelman and Thomas J. Healy, of Baltimore, Md., for the Petitioner. Mr. Thomas X. Dunn, of Washington, D. C., for the Intervenor. Mrs. Augusta Spaulding, of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Baltimore, Maryland, on August 12, 1946, before Charles B. Slaughter, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the National Labor Relations Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Standard Brands, Incorporated,' a corporation engaged in the manufacture and distribution of food products on a Nation-wide basis, operates at Baltimore, Maryland, a warehouse and trucking center known as the Baltimore Trucking Operation of the Employer's Fleischmann Manufacturing Division. Employees of the Baltimore Trucking Operation are the subject of this proceeding. During the past 6 months the Employer received at its Baltimore warehouse merchandise valued in excess of $50,000, approximately 95 ' The petition and other formal papers were amended at the hearing to show the correct name of the Employer. 72 N. L. R. B., No. 31. 181 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD percent of which was received from points outside Maryland. During the same period, the Employer shipped more than 5 percent of its products to points outside Maryland. The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED The Petitioner is a labor organization affiliated with the American Federation of Labor, claiming to represent employees of the Em- ployer. International Union of United Brewery, Flour, Cereal & Soft Drink Workers of America, herein called the Intervenor, is a labor organization affiliated with the Congress of Industrial Organizations. Local 323 is the local union chartered by the Intervenor, claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to 'recognize the Petitioner as the exclusive bargaining representative of employees of the Employer until the Petitioner has been certified by the Board in an appropriate unit. We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT; THE DETERMINATION OF REPRESENTATIVES The Petitioner contends that the warehouse and trucking employees in the Employer's Baltimore Trucking Operation constitute a unit appropriate for bargaining purposes. The Intervenor contends that the past bargaining history between the Employer and its employees on a multi-plant basis makes the proposed unit inappropriate. The Employer takes no position on the scope of the bargaining unit. At the time of the hearing in this proceding, the Employer operated 35 plants in the United States, among which were 8 of the 9 yeast and vinegar manufacturing plants acquired by the Employer in 1929 from The Fleischmann Company, when the latter discontinued operations as a manufacturing concern. The Employer operates these yeast and vinegar plants through an administrative division known as the Fleischinann Manufacturing Division, under a general pro- duction manager with offices at New York City. These plants are located at Washington, D. C.; Peekskill, New York; Pekin, Illinois; Chicago, Illinois; Dallas, Texas; Sumner, Washington; Oakland, STANDARD BRANDS, INCORPORATED 183 California; and Montgomery, Alabama. Each plant is under the im- mediate supervision of a local plant manager. Up to 1931 the Employer operated, as part of this division, an ad- ditional yeast and vinegar manufacturing plant at Baltimore, Mary- land, also acquired in 1929 from The Fleischmann Company as part of the latter's manufacturing operations. In 1931 the Employer dis- continued yeast and vinegar production at Baltimore and converted its local plant into a warehouse for storing products of the division made in the area and other foodstuffs such as tea and coffee delivered at Baltimore and consigned for distribution in the area. The ware- house became a truck terminal in the transportation of products to and from Philadelphia, Wilmington, and Washington for customers in and about this area. The warehouse and trucking operations were placed under the nominal charge of the manager of the Washington, D. C., plant,2 and became known among the Employer's operations as the Baltimore Trucking Operation. Employees in the Baltimore) Trucking Operation are the subject of the instant petition. Employees in the Baltimore Trucking Operation include a ware- houseman, seven drivers and a helper, a secretary, a watchman, and a janitor. The warehouseman is a working foreman who checks goods as they are loaded, unloaded and stored, 'and signs slips for overtime work. He acknowledges the receipt of goods bought by the Employer zn in and consigned to the warehouse at Baltimore. In emergencies, he may buy goods for the Employer. The drivers and helper load and unload their trucks at the transportation terminals and at the ware- house, and transport by truck and store in the warehouse products made or purchased for sale and distribution by the Employer and brought to Baltimore in part by common carriers. They drive their trucks from Baltimore to Philadelphia with a stop at Wilmington and from Baltimore to Washington, carrying foodstuffs and empty containers. Although these warehouse and ti,•ucking employees are listed as employees of the Fleischmann Manufacturing Division of the Employer's operations and are paid out of the Washington plant and are under the nominal supervision of the Washington plant manager, who, as traffic manager, hires and discharges these employees, they work without close and immediate supervision and have little in common with the work of the production and maintenance employees at any of the Employer's widely scattered manufacturing plants in 2 Under the supervision of the manager of the Washington, D C , plant, the warehouse and trucking remained for some purposes a pact of the Pleischinann Manufactuiing Divi- sion , even though the services performed by the «arehouse and trucking division exceeded the normal scope of the Fleischmann Manufacturing Division as a yeast and vinegar production activity. 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARii this division. The direction of the transportation and warehouse operations emanates from the Employer's Baltimore sales office, an- other administrative division of the Employer's operation. The field service manager of the sales office keeps the records of products enter- ing and leaving the warehouse. While the Petitioner and the Intervenor agree that, absent a his- tory of collective bargaining on a. broader basis, employees in the Baltimore Trucking Operation might constitute a separate appro- priate unit for bargaining purposes, the Intervenor contends that the history of collective bargaining between the Employer and the Inter- venor precludes their establishment as a separate bargaining group at this time. Prior to 1929, The Fleischmann Company recognized the Intervenor as the exclusive bargaining representative of the nine yeast and vinegar plants then operated by that company, and entered into mas- ter agreements with the Intervenor covering these plants and any other similar plants which might be opened by that company during the pendency of the respective agreements. These master agreements provided for closed shop, regular hours of employment, the arbitra- tion of grievances, and the execution of supplementary contracts be- tween The Fleischmann Company and locals of the Intervenor respect- ing wages and' working conditions at the several individual vinegar and yeast plants operated by that company. Following the execution of the master agreements, the local unions representing employees at the several plants concerned executed supplementary agreements, which, with the master agreement, became the individual contracts governing labor relations at these respective plants. In 1929, when the Employeer took over the manufacturing operations of The Fleisch- mann Company, the Employer continued this established bargaining procedure. When the Employer converted the yeast and vinegar plant into a warehouse. and trucking facility at Baltimore, employees at the Baltimore warehouse continued to negotiate a separate agree- ment for their plant.3 In 1941,4 the Intervenor severed its connection with the American Federation of Labor, with which it had been associated since 1887. For about 5 years the Intervenor remained an unaffiliated labor or- ganization. Early in 1946, the Intervenor, as an international or- ganization, determined to affiliate with the Congress of Industrial Organizations and to submit the matter of such affiliation by refer- 3 Although manufacturing operations at Baltimore ceased in 1931 , plant contracts exe- cuted after that time continued to recite wage rates for manufacturing operations " The record does not disclose the year when this event occurred , but current labor publi- cations of the Intervenor give the date as 1941. STANDARD BRANDS, INCORPORATED 185 endum s to its local unions. When, in June 1946, it appeared that a majority of the local unions chartered by the Intervenor were in favor of the proposed affiliation with the Congress of Industrial Organiza- tions and that such affiliation by their international union was im- minent, six of the eight or nine warehouse and trucking employees in the Baltimore Trucking Operation applied for membership in the Petitioner,6 an affiliate of the American Federation of Labor. On June 18, 1946, the Petitioner filed the petition in this proceeding, informing the Employer of its claim to represent a majority of employees in the Baltimore Trucking Operation and requesting that the Employer re- frain from extending its 1945-1946 agreement, which would expire on August 15, 1946, covering these employees. On August 1, 1946, the Employer entered into a new agreement with the Intervenor cov- ering all plants of the Fleischmann Manufacturing Division, excluding the plant at Washington, D. C., and the Baltimore Trucking Opera- tion, pending the resolution of the issues now before the Board in the instant proceeding. The plants in the unit urged by the Intervenor were originally all vinegar and yeast plants comprising the manufacturing operations of The Fleischmann Company. They are widely separated. When the Employer took the plants from its predecessor, it converted the com- pany-wide plant group into a division-wide group in its larger opera- tional program. In 1931, the Employer destroyed the homogeneity of the plant grouping when it converted the Baltimore plant into a warehouse and trucking facility in part under the manager of the Washington, D. C., plait, and in part under the sales office at Balti- more. Insofar as the record discloses, however, neither the change in ownership in 1929 nor the change in operations at the Baltimore plant in 1931 raised any issue among employees at any of the plants in the multi-plant unit respecting their representation by the Inter- venor. The local plant unions had enjoyed, and continued to enjoy, a considerable autonomy in dealing with their Employer through the Intervenor, both as an affiliate of the American Federation of Labor and, after 1941, as an unaffiliated union. When the Intervenor lately decided to affiliate with the Congress of Industrial Organizations, it undertook to hold a referendum toward the end of the contract year 'This referendum was apparently conducted among local unions of the Intervenor as locals The record does not disclose the choice on the ballot or the vote cast by the local unions These employees paid their dues and retained their membership in the Intervenor through July 1946, since they were covered by a closed -shpp contract between the Employer and the Intervenor which required their membership in the Intervenor for purpose of em- ployment. The contract between the Intervenor and the Employer terminated on August 15, 1946. 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD among its locals to determine the desires of the employees covered by the contract with respect to representation policies. The record in- dicates that employees of the Baltimore Trucking Operation were in disagreement on the issue and that a majority opposed representation by the Intervenor as an affiliate of the Congress of Industrial Organizations. The only real question before us is whether employees at this plant, comprising a unit prima facie appropriate for bargaining in the ab- sence of bargaining history, may, in the light of the bargaining history set forth above, bargain as a separate plant unit if they so desire. We believe that they may'properly do so in the absence of any prior unit finding by the Board, or any showing that there is any substantial common interest among employees in the Baltimore Trucking Opera- tion and employees at the Washington, D. C., plant, and other widely scattered yeast and vinegar manufacturing plants in the Fleischmann Manufacturing Division .7 C We will hold an election among the employees in the Baltimore Trucking Operation to determine if they desire to be represented by the Petitioner, by the Intervenor, or by neither. If a majority of these employees select the Petitioner, they will be taken to have indi- cated their desire for bargaining as a separate unit through the Peti- tioner as their representative. Under these circumstances, we will find that they constitute an appropriate bargaining unit, and we will certify the Petitioner as their exclusive bargaining representative. If, however, a majority of these employees select the Intervenor, they will be taken to have indicated their desire for bargaining in the larger divisional unit of which they have long been a part. Under these circumstances, or if a majority of employees vote for "neither," we will dismiss the petition. Since the working foreman does not hire or discharge employees or effectively recommend such action, and the parties are apparently agreed that he should be included in the unit, we will include him in the voting group. We will exclude from the voting group the secre- tary, the janitor, and the watchman, whom the parties agree to exclude. Employees eligible to vote in the election shall be all employees in the Employer's Baltimore Trucking Operation, including the work- ing foreman, but excluding the secretary, watchman, janitor, and all supervisory employees with authority to hire, promote, discharge, dis- 7We would distinguish the instant case from cases of multi-plant units established among employees of manufacturing plants wheie such employees have chosen the same bargaining representatives and have common interest arising out of simIIac plant opera- tions Matter of West Virginia Pulp and Paper Company, 53 N L. It B 814. STANDARD BRANDS, INCORPORATED 187 cipline, or otherwise effect changes in the status of employees, or effectively recommend such action, subject to the conditions and limi- tations set forth in our Direction of Election. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with Standard Brands, Incorporated, Baltimore, Maryland, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Fifth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Sections 203.55 and 203.56, of National Labor Relations Board Rules and Regula- tions-Series 4, among the employees in the voting group defined in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, to determine whether they desire to be repre- sented by Joint Council No. 62 of International Brotherhood of Team- sters, A. F. of L., or by International Union of United Brewery, Flour, Cereal & Soft Drink Workers of America, CIO, for the purposes of collective bargaining, or by neither.